Supreme Court of New York, New York County, March 31, 2021
Defendant The William Powell Company filed this instant motion for summary judgment pursuant to CPLR 3212 to dismiss plaintiff’s complaint and all cross-claims, based on the plaintiffs’ alleged failure to make a prima facie showing that plaintiff Nicholas J Esposito, Jr. (the decedent) was actually exposed to fibers released from a product sold, supplied and/or distributed by Powell. The decedent was diagnosed with Stage IV lung cancer in May 2019 which led to his death on November 16, 2019. The plaintiffs allege that the decedent’s illness and death was caused by exposure to asbestos containing valves manufactured by Powell.
During the decedent’s deposition, he testified to working at Kips Bay Steam Generating Station, as well as Astoria and Ravenswood Power Generating Stations where he testified to working with Powell asbestos containing valves. The decedent specifically identified Powell asbestos containing valves. Here, upon motion for summary judgment, Powell alleges that it did not cause the plaintiffs’ injuries. Powell argues that the decedent unequivocally denied ever working with a Powell valve. Powell argues that the decedent “passively failed to identify Powell” as a source of his asbestos exposure and that the decedent “actively denied exposure to Powell valves at least four (4) separate times during his discovery deposition.”
The court examined the decedent’s testimony and found that he did, in fact, identify Powell valves. Moreover, the four times in the decedent’s testimony that Powell refers to in its motion are merely points in the decedent’s deposition where he was asked if he remembered making statements regarding Powell valves earlier in his deposition. Powell attached the deposition of the decedent in which he clearly identifies Powell as a manufacturer of the valves that the decedent encountered as a mechanic at Kips Bay. The court noted that Powell did not provide any evidence that their product did not create visible asbestos dust. Powell contests causation, but does not provide a single report from any industrial hygienist, physician or medical expert, in support of its motion. Powell “bears the initial burden to establish that exposure to the asbestos from its products could not have contributed to mesothelioma or that the decedent was not exposed to levels of asbestos sufficient to contribute to the development of his disease.
The court noted that Powell has merely pointed to gaps in the plaintiffs’ proof and thus had failed to provide evidence to provide that the decedent was not exposed to asbestos through one of Powell’s products. Consequently, the court denied Powell’s motion for summary judgment.